State Officials Manipulate Law On Complaint, Leave Family Without Water

Correction: the original line read “… The complaint gets a number, the Pepper’s is #302587, and day one starts when DEP shows up at the door to test the water.” But day one actually begins on the Department’s receipt of the complaint.

Update: DEP eventually determined the Pepper water supply problems to be unrelated to oil and gas, even though oil and gas related contaminants were found above maximum contaminant levels in their water test results. The Department claimed the contaminants were from the lack of water in the well and difficulty in sampling. They also claimed chemicals detected that were related to fracking, such as acetone, were lab contaminants and present in the trip blank. The Department refused to return and resample the water supply.

The Pepper family tried to appeal the DEP’s determination but dropped their appeal shortly before the hearing date, citing a lack of funding and resources to fight both the state and industry working together on the case. The case remains one of thousands of “non-impact” complaints in DEP’s records exposed by Public Herald. For the latest on this story see, “Duquesne University Scientist Says State’s Water Testing For Fracking Chemicals Cannot Be Trusted.”

Cory and Christine Pepper look for water in their well after it recently went dry for the first time. © Joshua B. Pribanic for Public Herald

Part 1: Complaint #302587

It’s day one and Christine Pepper’s family has no water. There’s no water for the family to drink or wash their clothes so they’re making calls to inlaws and saving single gallon plastic jugs. It’s day one, and the Pepper family has 45 days until they know what’s happened.

It started when Christine splashed water on her face from the kitchen faucet and a burning sensation shot through her skin. “It felt like my face was on fire for 20 minutes,” she said. Later red bumps developed.

Not shortly after there was no water at all. The Pepper’s spring-fed well, which had produced water for more than 50 years, went completely dry.

“I’m not saying we’ve never had low water,” explains Christine’s husband Cory, “but it always comes right back, but it’s stayed dry for two weeks. And… I’ve never seen it! I’m 42, I’ve lived here 42 years, and my Dad was 18 when he bought this house.”

Cory and Christine Pepper stand at their spring water well in Leroy Twp. photo: Joshua B. Pribanic for Public Herald

The Peppers live on Southside Road in Leroy Twp. Bradford County, where Public Herald reported on drinking water problems in the documentary Triple Divide. The Pennsylvania Department of Environmental Protection (DEP) has pending Gas Migration Investigation (GMI) cases throughout the area, with Leroy Twp. being famous for two GMI’s in the last three years: the Atgas 2H well blowout in April 2011, and the Morse 5H well subsurface problems in 2012. Both wells are within three miles of each other.

Cory and Christine Pepper live 1,000ft from the Morse 5H well and 3 miles from the Atgas 2H well, each operated by Chesapeake Energy Corporation.

According to DEP, the Morse 5H well is currently in “inactive status” due to regulatory procedures. But, there’s a second well on the pad — the 3H — which the Peppers were told was put into production the same week their well went dry.

“They opened up the [3H] well and the next day we have problems,” told Cory, who happens to work locally for the gas industry but has been skeptical that fracking had anything to do with stories of water contamination in the area.

The phrase “opened up” is another way of saying the gas well went “on line” or into production. Essentially, the company pulls a plug and the gas is released, ready to go to market.

When Cory saw his family’s spring dry up, and found out that the 3H well had been put online, he and Christine did the only thing to do; they called DEP to submit a complaint.

Once a homeowner submits a drinking water complaint the Department has 45 days to make a determination about whether oil and gas activities have impacted the water supply. The complaint gets a number, the Pepper’s is #302587, and day one for DEP starts on the receipt of the complaint. But it’s hardly ever cut and dry. Christine talked to DEP on a Friday but as Cory puts it, “They told her it was an inconvenience for them to come out and test it on a Friday. So, they came out Tuesday [February, 11th]. That was day one with DEP.”

The Pepper family living next to the Morse well pad in Bradford County, PA. © Joshua B. Pribanic for Public Herald

As Christine recalls, “DEP came that day [Tuesday] and told me that bare minimum it would be 45 days to several years before they come up with a conclusive decision. And the one gentleman told me that it was highly unlikely it had anything to do with the drilling over there.”

The Pepper family is no stranger to DEP or impacts from fracking. Christine’s mother is Carolyn Knapp, and Carolyn has spent years educating Bradford County about the impacts from drilling while criticizing DEP for how they handle water complaints. So since this isn’t Carolyn’s first water rodeo, Christine had her mother act as the liaison for her complaint.

Carolyn Knapp appeared in Triple Divide as a supporter of her friend, dairy farmer Carol French, who experienced water pollution and lack of action with a DEP complaint. © Joshua B. Pribanic

Public Herald started collecting DEP complaint files when they first became available in Spring 2013; in previous years no one could access complaints. DEP files complaints into two categories: water complaints and general complaints. Water complaints deal mostly with drinking water. General complaints deal with everything else; however that doesn’t mean that general complaints don’t also deal with water.

Public Herald Executive Director, Melissa Troutman, scans files at DEP’s office in Williamsport, PA. © Joshua B. Pribanic

As of June 2013 Public Herald found Bradford County had 285 water supply complaints (Bradford County complaint map below represent data as of February, 2015). Of those, 11 complaints were filed for Leroy Twp., eight being water complaints. The remaining three general complaints have at least two concerning drinking water from spills; one involving a 4,700 gallon spill of hydrochloric acid, a component of fracking fluid, on July 4th, 2012.

Carolyn knows about these complaints, “The neighbors have had…” Christine interjects, “black water, no water, methane water.”

Christine Pepper stands next to empty gallon jugs once filled with drinking water to replace the water she believes was lost because of nearby fracking. © Joshua B. Pribanic for Public Herald

Now that Christine is having to communicate with DEP she’s beginning to experience the stories her mother talked about. “I felt like they were questioning my integrity. DEP made me feel like I was wrong for believing [the well pad] has anything to do with it. And said if I wasn’t going to cooperate they weren’t going to help me… completely disregarding the fact that I have no water.”

Herein lies one part of the problem Public Herald has learned with complaint investigations: DEP’s discriminatory attitude and treatment of citizens who report water problems. As Carolyn explains, “A lot of other people would say forget about it, and it’s not worth the hassle.”

“There should be a provision in the law that requires them to supply water,” says Carolyn. “They don’t understand for 45 days what it’s like to live out of a bottle.”

But there is a provision.

Pennsylvania Act 13 provides the “presumption of liability” clause under section 3218 which holds the industry liable for supplying water to nearby complaints and gives DEP 45 days to conduct and complete an investigation.

“Operators found to have impacted a water supply within the time and distance provisions of the presumption of liability must supply temporary potable water until the supply is restored or replaced.” (DEP)

However, DEP personnel changed the meaning of the law and told Carolyn in an email that the Department cannot provide Christine water and the presumption of liability only applies once DEP makes a determination before or after the 45 days.

Then on February 28th, Department personnel Jennifer Means sent Carolyn another email stating that DEP can require a company to provide a temporary water supply on day one of the complaint under the presumption of liability, but only for complaints of pollution.

But Carolyn never questioned the need for sampling of the water supply. She questioned how it could be done if there was no water. Carolyn told DEP on day one of the complaint that the problem was both pollution and diminution.

Means emphasized to Carolyn how the Department has no evidence leading them to believe the Morse gas well could have caused Pepper’s water complaint.

Chesapeake Energy made the same statements in a separate email.

Yet Public Herald uncovered documents that the Morse well has a dangerous history which the Department was fully aware of but chose to ignore in their explanation to the Pepper’s.

Recently, the Leighton family who also live near the Morse Well, sued Chesapeake Energy for drinking water contamination related to a blowuot at the well in 2012. Their case file discusses some of these problems:

Empty water bottles in rows at the entrance of the Pepper home. © Joshua B. Pribanic for Public Herald

The Morse 5H well blowout is also responsible for impacting a nearby creek on Tim Pepper’s farm (Cory Pepper’s brother), an incident documented by Public Herald in Triple Divide. With the Leighton’s case, Tim Pepper’s creek blowout, and other incidents happening within the past two years, DEP had evidence on the Morse well to enforce the presumptive clause.

But, instead they manipulated the law and left the Pepper family without water.

“If they took care of the landowners and the local people you’d be so much further ahead, but they won’t. And that’s what pissed me off.” Cory protests.

If the Peppers water supply turns out to be safe to drink, it doesn’t restore their trust in the Department or Chesapeake Energy.

For complaint #302587 Christine affirms, “It’s not just my life I’m concerned about; it’s their life.”

The sons of the Pepper family look into their empty kitchen sink. © Joshua B. Pribanic for Public Herald

Read Part 2 of the INVISIBLE HAND series and follow @publicherald on twitter for updates. Also, check out our new #fileroom website for all the latest complaint files and more.

Leighton Family Lawsuit Against Chesapeake Energy Involving Morse 5H Well

Reference: Morse Plat (PDF)